Not the Boardroom, the Bedroom. The first point that I want to make about the Hobby Lobby opinion has nothing to do with corporate law (which may disqualify me from future GLOM participation). I want to point out that access to contraceptives is an issue for BOTH women and men. Dare I say that it is, at its essence, a family issue? Because of how medical technology has advanced (and a bit of biological incentives) there is a wider variety of pharmaceuticals for women that prevent pregnancies than are available for men. Yes, this technology helps women participate in the workforce, equalize health care costs, and a host of other goals identified by Justice Ginsberg in her dissent. But men benefit from being able to plan for pregnancies in many of the same ways that it benefits women. The consequences are magnified for women, of course, and I am in no way diminishing the unequal burden. But I cannot stand another debate that exclusively talks about a WOMAN’s access to contraceptives as if the need for those contraceptives and the benefits derived from them have nothing to do with their male partners or their families.

If it is the Boardroom, then WHOSE Boardroom? Much has been made about the catastrophizing by opponents to the Hobby Lobby exemption suggesting that those who opposed the exemptions were envisioning a parade of implausible horribles. The opinion limits the holding to closely held entities, but don’t take the bait. The reasoning behind the holding is broadly stated with no distinction and will prove to be powerful arrows in the quiver of future litigants wanting to extend the scope of the holding to other entities. For example consider the following analytical building block for future litigation from the Majority: “Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law.”

Some have suggested that Justice Ginsberg’s dissent repeated a fatal error made by Justice Scalia in the DOMA case. Justice Ginsberg, like Justice Scalia, rejected the Majority’s attempt to limit the scope of the holding providing insight into the Majority’s reasoning that will be quotable by lower courts and future litigants seeking guidance on how to interpret Hobby Lobby. Take for example, her line that the Majority’s logic “extends to corporations of any size, public or private…..[and] invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.”

Allow me to repeat myself (see BLPB post) when I also point out that the opinion doesn’t define what qualifies as a closely held entity. Even if we accept that the reasoning is limited to closely held entities, where should we look for that definition? State law? IRS guidelines? Common law? The absence of a clear definition is either evidence that there was no intention to limit the holding to closely held entities, or it suggests an important issue has been left unresolved for future litigation. While we have a general sense what closely held means, the precise boundaries are more difficult. Will closely held entities become the new pornography where we only know it when we see it? Take Wal-Mart as an example with 51% of its stock held by the Walton family and insiders (satisfies the IRS definition), but with publically traded stock. Is it in or out? Of course, larger entities may have difficulty establishing the sincerity of the belief, but that seems to be a prong of RFRA that no one wants to touch. And Justice Alito pointed to state law as appropriate intra-shareholder dispute resolution mechanisms. In other words, the controlling shareholder wins, so maybe only the controlling shareholder needs to have a sincere belief.

The Unaccommodating Accommodation. Not 72 hours after the opinion, the Court in a vote of 6-3 granted Wheaton College, a non-profit Christian institution, a temporary exemption from the accommodation under the All Writs Act. The same Justices who found that the contraceptive mandate failed the least restrictive means prong of RFRA, within the same week questioned the constitutionality of that very accommodation process. Wheaton asserts that the exemption process itself is an impermissible burden on Wheaton’s free exercise of religion in violation of RFRA because by filing the exemption form they trigger access to contraceptives. Justice Sotomayor wrote a dissent, joined by Justices Kagan and Ginsberg, highlighting the analytical whiplash resulting from this turn around. “After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contractive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might…retreats from that position.”

The Not so Burdensome Burden. First, paying for third party’s access to contraceptives was a substantial burden on religion in Hobby Lobby. Later that same week in Wheaton College, the issue was filing a form with the government so that third parties could get access to contraceptives that someone else pays for may be a substantial burden on religion. While granting the injunction is not a clear indication of the Court’s future treatment of the merits, there is powerful language in the Hobby Lobby opinion foreshadowing the Court’s views of acts that merely facilitate any kind of breach of a religious code. The Court framed the case as an “important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but hat has the effect of enabling or facilitating the commission of an import act by another.” The corporate plaintiff didn’t have to violate its beliefs (that feels like an absurd statement), but taking an action that permitted a third party employee to possibly violate the beliefs of the corporation was a sufficient burden. This is also ignores that the contraceptives at issue could be used for medical reasons unrelated to lifestyle choices. Here is where I struggle the most with the reasoning of the Majority. Employers pay employees subject to minimum wage laws. Employers have no guarantee that the employees will use the compensation in a manner consistent with the employer’s religious views. Why is it different when the compensation comes in the form of employer-provided health benefits, which is a form of compensation?

Not the Boardroom, the Bedroom. The first point that I want to make about the Hobby Lobby opinion has nothing to do with corporate law (which may disqualify me from future GLOM participation). I want to point out that access to contraceptives is an issue for BOTH women and men. Dare I say that it is, at its essence, a family issue? Because of how medical technology has advanced (and a bit of biological incentives) there is a wider variety of pharmaceuticals for women that prevent pregnancies than are available for men. Yes, this technology helps women participate in the workforce, equalize health care costs, and a host of other goals identified by Justice Ginsberg in her dissent. But men benefit from being able to plan for pregnancies in many of the same ways that it benefits women. The consequences are magnified for women, of course, and I am in no way diminishing the unequal burden. But I cannot stand another debate that exclusively talks about a WOMAN’s access to contraceptives as if the need for those contraceptives and the benefits derived from them have nothing to do with their male partners or their families.

If it is the Boardroom, then WHOSE Boardroom? Much has been made about the catastrophizing by opponents to the Hobby Lobby exemption suggesting that those who opposed the exemptions were envisioning a parade of implausible horribles. The opinion limits the holding to closely held entities, but don’t take the bait. The reasoning behind the holding is broadly stated with no distinction and will prove to be powerful arrows in the quiver of future litigants wanting to extend the scope of the holding to other entities. For example consider the following analytical building block for future litigation from the Majority: “Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law.”

Some have suggested that Justice Ginsberg’s dissent repeated a fatal error made by Justice Scalia in the DOMA case. Justice Ginsberg, like Justice Scalia, rejected the Majority’s attempt to limit the scope of the holding providing insight into the Majority’s reasoning that will be quotable by lower courts and future litigants seeking guidance on how to interpret Hobby Lobby. Take for example, her line that the Majority’s logic “extends to corporations of any size, public or private…..[and] invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.”

Allow me to repeat myself (see BLPB post) when I also point out that the opinion doesn’t define what qualifies as a closely held entity. Even if we accept that the reasoning is limited to closely held entities, where should we look for that definition? State law? IRS guidelines? Common law? The absence of a clear definition is either evidence that there was no intention to limit the holding to closely held entities, or it suggests an important issue has been left unresolved for future litigation. While we have a general sense what closely held means, the precise boundaries are more difficult. Will closely held entities become the new pornography where we only know it when we see it? Take Wal-Mart as an example with 51% of its stock held by the Walton family and insiders (satisfies the IRS definition), but with publically traded stock. Is it in or out? Of course, larger entities may have difficulty establishing the sincerity of the belief, but that seems to be a prong of RFRA that no one wants to touch. And Justice Alito pointed to state law as appropriate intra-shareholder dispute resolution mechanisms. In other words, the controlling shareholder wins, so maybe only the controlling shareholder needs to have a sincere belief.

The Unaccommodating Accommodation. Not 72 hours after the opinion, the Court in a vote of 6-3 granted Wheaton College, a non-profit Christian institution, a temporary exemption from the accommodation under the All Writs Act. The same Justices who found that the contraceptive mandate failed the least restrictive means prong of RFRA, within the same week questioned the constitutionality of that very accommodation process. Wheaton asserts that the exemption process itself is an impermissible burden on Wheaton’s free exercise of religion in violation of RFRA because by filing the exemption form they trigger access to contraceptives. Justice Sotomayor wrote a dissent, joined by Justices Kagan and Ginsberg, highlighting the analytical whiplash resulting from this turn around. “After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contractive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might…retreats from that position.”

The Not so Burdensome Burden. First, paying for third party’s access to contraceptives was a substantial burden on religion in Hobby Lobby. Later that same week in Wheaton College, the issue was filing a form with the government so that third parties could get access to contraceptives that someone else pays for may be a substantial burden on religion. While granting the injunction is not a clear indication of the Court’s future treatment of the merits, there is powerful language in the Hobby Lobby opinion foreshadowing the Court’s views of acts that merely facilitate any kind of breach of a religious code. The Court framed the case as an “important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but hat has the effect of enabling or facilitating the commission of an import act by another.” The corporate plaintiff didn’t have to violate its beliefs (that feels like an absurd statement), but taking an action that permitted a third party employee to possibly violate the beliefs of the corporation was a sufficient burden. This is also ignores that the contraceptives at issue could be used for medical reasons unrelated to lifestyle choices. Here is where I struggle the most with the reasoning of the Majority. Employers pay employees subject to minimum wage laws. Employers have no guarantee that the employees will use the compensation in a manner consistent with the employer’s religious views. Why is it different when the compensation comes in the form of employer-provided health benefits, which is a form of compensation?